Given v. Lemoine

• Decision Date: 31 March 1864
• Citation: Given v. Lemoine, 35 Mo. 110 (Mo. 1864)
• Parties: HENRY A. GIVEN et als., Respondents, v. JOHN B. S. LEMOINE, Appellant.
• Court: Missouri Supreme Court

35 Mo. 110

HENRY A. GIVEN et als., Respondents,

v.JOHN B. S. LEMOINE, Appellant.

Supreme Court of Missouri.

March Term, 1864.

Appeal from the St. Louis Court of Common Pleas.

The facts are fully stated in the opinion of the court.

Instructions asked by appellant:

1.If Given in the month of June, 1857, and before any shipment of tobacco was made by defendant, was informed by defendant and had knowledge of the cost of the first shipment of twenty-six hogsheads of tobacco; and being so informed and having such knowledge, told defendant if he would ship the lot of twenty-six hogsheads to plaintiffs, they(plaintiffs) would sell the same as factors for a handsome profit; and that defendant, relying on this promise, made the shipment to plaintiffs at New Orleans; then, in such case, plaintiffs were not authorized to sell said tobacco at a loss on the St. Louis cost.

2.Although plaintiffs may have had no instructions as to time of sale or price, yet if they could have sold the tobacco in the months of July, August and September, at a profit and to advantage, and neglected to do so, and withheld defendant's tobacco from sale until in December, when the same had greatly declined in the market, and then sold it at a great loss, they must answer to defendant for such loss.

3.That the plaintiffs, as factors, were bound, while having charge of defendant's tobacco, to keep him informed of facts material to his interests; and if, while plaintiffs so held defendant's tobacco in the months of September, October, November and December, the tobacco all that time was declining in price, and plaintiffs knew it was so declining and failed and neglected to inform defendant thereof; and then without notice to defendant, and without demanding a payment of advances made by plaintiffs in the months of December, February and March, sold the tobacco at great loss and sacrifice, in such case plaintiffs are bound to make good to defendant such loss.

4.That plaintiffs, as factors, were bound to keep the tobacco of defendant unmixed with tobacco belonging to themselves or others.

5.That plaintiffs, as factors, had no right to mix defendant's tobacco with that of themselves or others, and then so mixed in a lot or lots, composed of different grades, qualities and values, to sell the whole thus mixed at a round or average price per pound.

6.That if defendant's tobacco, in the months of July, August and September, could have been sold by plaintiffs at a profit to defendant, and plaintiffs knew this fact, and so informed defendant from time to time during said time, and without informing defendant of any decline in the market, and without informing defendant as to the then state of the market, and without any demands of payment of advances made defendant, and without notice to defendant, in the month of December, 1857, sold fifty-one hogsheads of defendant's tobacco at a great sacrifice and loss; in such case plaintiffs are answerable for such loss.

7.To constitute in this case instructions to sell, there need not be an order or command; the expression of a wish or preference is sufficient, and defendant's letters of the 14th July, 12th and 18th September, 1875, amounted to such instruction; and if plaintiffs could have made a sale or sales, on receiving these letters, and failed and neglected to do so, then they are bound for the loss occasioned by such failure and neglect.

8.That if defendant, at the time or after the shipments to plaintiffs, was informed by plaintiffs that defendant's tobacco could be sold in the New Orleans market for a profit on St. Louis costs, and that plaintiffs from time to time, by letters, gave to defendant the same impressions and information through the months of July, August, September and October, and until the 14th December, or about that time, when, without notice and without previous demand for advances, they(the plaintiffs) sold defendant's tobacco at a great sacrifice and loss, they are liable to defendant for such loss.

9.If, prior to shipments of tobacco by defendant to plaintiffs, the plaintiffs or any of them gave the defendant assurance, that if said tobacco should be shipped to them they could sell it for profit; and if, from the time of such shipments up to the 7th of October, 1857, the plaintiffs continued to hold out in their letters to defendant the prospect of a profit, either by direct assurance to that effect, or by failing in such letters to inform defendant of an unfavorable change in the New Orleans market; and if, from the said 7th of October, to the 14th of December, 1857, the prices of tobacco in that market were steadily declining, and the plaintiffs did not between those dates give the defendant information of such decline, so as to give defendant the opportunity to refund the advances made, and expenses incurred by plaintiffs in connection with the said tobacco, then the plaintiffs are bound to make good to the defendant any loss sustained by the defendant in the sale of said tobacco.

Which instructions the court refused, and defendant excepted.

Drake and Wood, for appellant.

Appellant insists that although the respondents, as factors, were not limited by instruction to a specified price for the tobacco on sale, yet there is nothing in the evidence to show that the appellant conferred on respondents a discretion to sell below cost.To induce the shipment, respondents assured appellant that they could and would sell his tobacco at a profit.All the correspondence on the part of respondents represents the market price at New Orleans as affording a profit, and nothing had been communicated by respondents to appellant to make it necessary for him to determine whether he would permit his tobacco to be sold at a loss.

Appellant's instructions, as given in his letter of the 14th July, 1857, are substantially instructions not to sell below cost.If a fair profit over cost and expenses could be made on sale, his instructions was to make quick sale; and they(respondents) were in that letter instructed in these words: “You have all the information you require to know, what I can afford to sell at.”That information, the evidence shows, was full information as to the costs and expenses of the tobacco.

The instruction given in appellant's letter of the 18th September does not change or modify previous instructions.This letter was written on the assumption that the state of the tobacco market in New Orleans was truly represented by respondents, in person, by their letters and prices current, all showing prices much above cost and expenses, and was intended to hasten, to command a sale at these prices.

There is nothing in all the evidence even tending to show that appellant ever said or wrote a word, from which his consent to sell his tobacco under cost can be inferred; nor that there was ever an intimation given by Given, Watts & Co., that the market in New Orleans was below St. Louis prices, or that they would have to sell below cost.Of such a result there is no evidence that Lemoine had a suspicion, until, after more than two months' silence by Given, Watts & Co., they surprised him by their letter of the 14th December, reporting a most disastrous sale.

If this view and construction of the facts be correct, or, whether correct or not, in any view of the facts, it is evident that both parties contemplated and intended a sale at a profit, and not at a sacrifice.In such case, when, by reason of a great and rapid decline of the market, the great expectations of both parties had been defeated, respondents were bound, before selling at a great sacrifice, to give Lemoine notice and information, and to demand repayment of advances made; and having failed to do so, they are liable for damages arising therefrom.(1 Story on Con. §§ 354 & 357, and note;Parker v. Brancker, 22 Pick. 46;12 N. Hamp. 239.)

Instructions as to this point were asked by defendant and refused by the court; and there is nothing in the instructions as given by the court, to the same effect or even equivalent.

The first instruction asked by defendant below asserts the law and was warranted by the facts of the case.

The second and sixth instructions were proper, and ought to have been given.(Evans v. Potter, 2 Gall. 13;1 Sto. Con. 405, n. 3to § 354.)

The third was proper, and demanded by the facts of the case.

The fourth and fifth instructions of defendant were properly asked and ought to have been given, and the instruction of the court as to the points in these instructions is contrary to the law.(1 Sto. Con. § 360, a.; Clark v. Tipping, 9 Beavan, 284, 291 and 292.

The seventh instruction was proper.(1 Sto. Con. § 359.)The eighth and ninth instructions ought to have been given as asked.(Authorities cited above.)

The instructions given by the court, on its own...